Supreme Court Rules Title VII Prohibits Discrimination Based Upon Sexual Orientation and Transgender Status – Part II

On Monday I sent out an update that the U.S. Supreme Court had ruled that an employer who fires an employee for being gay or transgender violates Title VII. There are a few key aspects about this ruling that I want to point out.

  1. This is not new law. Unlike a new statute, this ruling is actually the Supreme Court telling us how Title VII should have been interpreted all along. And, many courts have been ruling that Title VII prohibits discrimination based upon sexual orientation and transgender status for years. However, the Fifth Circuit (covering Louisiana, Mississippi and Texas) has traditionally not construed Title VII in this manner. So, although this ruling is not technically “new law”, it will change the way the courts in the Fifth Circuit construe these types of cases in the future.
  1. This is effective immediately. When a statute is passed, it takes effect on a specific date in the future. Unlike a statute, the Supreme Court’s ruling is effective immediately.
  1. Change your policies now. The employee handbooks and manuals used by some employers contain a list of the types of characteristics that the employer will not discriminate against (age, race, sex, color, religion….). Although the Supreme Court ruling means that sexual orientation and transgender status are subsumed in “sex” employers should consider specifically listing sexual orientation and transgender status as protected characteristics in their handbooks and employee manuals.
  1. Train! We are all familiar with the fact that we must periodically train our employees on the application of our policies and procedures, and especially on our harassment/discrimination policies. Employers need to ensure that they revise their training to include sexual orientation and transgender status as protected classes when it comes to harassment and discrimination. We are going to see an increase in these types of cases, and our ability to prove that we provided adequate training will be a key element of our defense.
  2. As odd as it sounds, treating men and women the same can be discriminatory. The Supreme Court stated it this way: “An employer cannot escape liability by demonstrating that it treats males and females comparably as groups….An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.” The fact that you don’t hire either gay females or gay males is not a defense; it still amounts to discrimination based upon sex.

EEOC Updates COVID-19 Technical Assistance Q&A

In its updated Q&As, the EEOC addresses some significant and current issues such as reasonable accommodation, hiring and onboarding, pandemic-related harassment, return to work, age discrimination, pregnancy discrimination, and sex discrimination regarding employees with caretaking/family responsibilities. I would recommend that you read the entirety of the Q&As. You can find them here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term

Addressing an issue that has been presented to me several times in the past few weeks, the EEOC specifically addresses whether an accommodation is required for an employee who is not disabled, but whose family member may be at high risk for contracting COVID-19 due to underlying health or condition. Q&A D.13 states:

D. 13 Q: Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

D. 13 A.: No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

So, it is the EEOC’s position that you do not have to accommodate an employee’s concerns about returning to work because they have a family member who is at an elevated risk of a negative outcome from a COVID-19 infection. Regardless of how you respond to such a request, you should consider your previous responses to similar requests and make sure that you do not inadvertently discriminate against an employee with a disabled family member.

OSHA Issues First COVID-19 Related Citation to Nursing Home in Georgia

The Occupational Safety and Health Administration (OSHA) has issued its first COVID-19 related citations to a nursing home. OSHA claims that six nursing home employees in Georgia were hospitalized as a result of COVID-19 that they allegedly contracted while at work, and that the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period. (Employees were hospitalized around April 19, but report was not made to OSHA until May 5.) OSHA has proposed a $6,500 fine for the “other than serious” citation.

Generally, employers must report incidents to OSHA within twenty four hours when an employee suffers a work-related in-patient hospitalization. This includes instances in which an employee is hospitalized because of COVID-19 if the employee contracted COVID-19 while at work and the hospitalization occurs within 24 hours of the employee contracting the virus. (Refer to 29 CFR 1904.39(b)(6)).

  • When several cases develop among workers who work closely together;
  • If it is contracted after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19; or
  • If an employee’s job duties include having frequent, close exposure to the general public in a locality with widespread transmission.

You can find OSHA’s May 19, 2020 guidance on COVID-19 infection record keeping here: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid- 19#:~:text=Under%20OSHA’s%20recordkeeping%20requirements%2C%20COVID,Prevention%20(CDC)%3B%5B2%5D

In the case of the Georgia nursing home, OSHA stressed that the widespread transmission of COVID-19 in nursing homes in general, and the fact that six employees in this particular nursing home tested positive for COVID-19 should have been an indication to the employer that the virus was work-related.

Bottom line: Employers must make themselves aware of OSHA’s reporting and recording obligations, and consider them each time an employee tests positive for COVID-19.

U.S. DOL Issues New FFCRA Q&A’s

The U.S. Department of Labor recently issued yet more FFCRA Questions and Answers. You can find the new Q&A’s here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions Numbers 89 to 93 are new.

I have summarized the new Q&A’s below, but I would encourage you to read the full, original Q&As.

89: I hire workers to perform certain domestic tasks, such as landscaping, cleaning, and child care, at my home. Do I have to provide my domestic service workers paid sick leave or expanded family and medical leave?

Yes if they are your employees, as opposed to independent contractors. This will generally hinge on whether or not the workers are economically dependent upon you for the opportunity to work.

90. If I am employed by a temporary placement agency that has over 500 employees and am placed at a second business that has fewer than 500 employees, how does the leave requirement work? Are one or both entities required to provide me leave?

The temporary staffing agency is not covered by the FFRCA because it has more than 500 employees. The second business may be required to provide you with FFCRA leave, depending upon whether or not it is your joint employer.

91. My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?

You can ask the employees about any changed circumstances, explaining why they are now unable to work, but “you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” The employees may be entitled to FFCRA leave now if, for example, they have made the decision to take paid sick leave or expanded family and medical leave to care for their children so that their spouse could work or telework.

92. My employee claims to have tiredness or other symptoms of COVID-19 and is taking leave to seek a medical diagnosis. What documentation may I require from the employee to document efforts to obtain a diagnosis? When can it be required?

You can require the employee to identify his or her symptoms and a date for a test or doctor’s appointment.

93. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

Not unless the child’s care provider is closed or unavailable for a COVID-19 related reason.

OSHA Suggestions Regarding Coronavirus

You are all no doubt aware that OSHA does not yet have a specific standard addressing viral pandemics. Rather, the General Duty Clause will be applied to this situation.  The GDC requires that “Each employer shall furnish each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.”

Despite the wording of the GDC, it does not make employers absolute guarantors that their employees will not be injured or exposed to hazards on the job. Rather, OSHA must prove four elements in order to establish a violation of the GDC. One of those elements is that the employer failed to implement feasible and useful methods to correct the hazard.

OSHA recently issued “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.” You can find it here: https://www.osha.gov/Publications/OSHA3994.pdf . Most of these are common-sense steps that we are familiar with. OSHA may construe a failure to follow these ten steps as a failure to implement “feasible and useful methods to correct the hazard” should an employee contract the virus in your workplace.

If you are not already doing so, I would suggest that you strongly consider implementing as many of the ten steps recommended by OSHA as possible, and that you maintain records showing that you were aware of OSHA’s recommendations and followed them. Complying with the recommendations is not enough; you must be able to prove that you did so.

As always, don’t hesitate to reach out to me if you have any questions.

Stay safe.

The IRS Tells Us What Information We Must Obtain From Employees On FFRCA Leave In Order To Qualify For The Tax Credit AKA: This Is What Your Forms Should Look Like

THIS IS IMPORTANT! If you want to take advantage of the tax credit available for paid leave provided to your employees under the EPSLA and EFMLA of the FFCRA, you need to read this. The IRS has given us an outline of what some of the FFRCA-related forms should look like.

This outline is contained in the IRS’s new list of Frequently Asked Questions related to the documentation requirements of the tax credit provisions of the FFCRA. For those of you who want to wade through the original document, you can find it here https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs Continue reading “The IRS Tells Us What Information We Must Obtain From Employees On FFRCA Leave In Order To Qualify For The Tax Credit AKA: This Is What Your Forms Should Look Like”

We Have Far Less Time Left On The DOL’s Thirty Day Non-Enforcement Period Than We Originally Thought

You may recall that the United States Department of Labor indicated that so long as an employer attempted in good faith to comply with the FFCRA, it would allow a thirty-day “non-enforcement” grace period. We originally believed that that meant that we had thirty days from the effective date of the FFCRA of April 1, 2020; meaning that the non-enforcement period would run until April 30, 2020.

Unfortunately, the Wage and Hour Division of the DOL has issued a Field Assistance Bulletin indicating that the non-enforcement period actually begins on date of enactment of the FFCRA (March 18). This means that the thirty-day grace period will expire two weeks sooner than we originally thought, on April 17, 2020. You can read the Bulletin here: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1

The Bulletin does give us some useful guidance by defining what an employer must do in order to act in good faith for purposes of the thirty-day grace period.

  • The employer remedies any violations, including by making all affected employees whole as soon as practicable.
  • The violations of the Act were not “willful”; meaning that the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”. This is where getting guidance from your employment counsel can provide you with a defense for honest mistakes.
  • The Department receives a written commitment from the employer to comply with the Act in the future.

Being able to prove that you did not show reckless disregard means that you take objective, concrete steps to comply with the law.

As always, call me if you need assistance and stay safe,

Jay

DOL Issues Second Set Of FAQs; And The News Is Mostly Good For Employers

Yesterday, the DOL issued a second set of FAQs related to the Families First Coronavirus Response Act (FFCRA).    You can find the FAQs here.  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

These are the highpoints:

Documenting Leave:

  • Employees must support leave requests with the appropriate information, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave date(s).
  • Employees must provide documentation supporting the absence, for example, written documentation from a health care provider advising self-quarantine, a notice posted on a government, school, or daycare website,  or an email from an employee or official of the school, place of care, or child care provider.  As you can see, the standard will be fairly low.

Continue reading “DOL Issues Second Set Of FAQs; And The News Is Mostly Good For Employers”

U.S. Department of Labor Issues COVID-19 Question and Answers

The U.S. Department of Labor has just provided us with a Q & A sheet regarding the Families First Coronavirus Response Act here. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

This document does not answer all of our questions, but it does provide us with some useful guidance. These are what I think are the most useful bits:

  • The FFCRA’s paid leave provisions are effective on April 1, 2020, not April 2 as we expected.
  • The DOL to set guidance for an exemption to the emergency FMLA leave (12 weeks) for businesses with less than 50 employees where providing the leave would jeopardize the viability of the business as a going concern. The DOL has instructed small businesses to document the reason that providing the leave would jeopardize the business as a going concern for now, and indicated that additional guidance would be forthcoming.
  • We calculate the number of employees at the time that the employee takes leave.
  • We are to include the following as employees: employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only you’re or another employer’s payroll); day laborers supplied by a temporary agency.
  • We do NOT include independent contractors under the Fair Labor Standards Act (FLSA),
  • The Q&A sheet provides some guidance on how to cumulate the employees of two related entities for purposes of determining the 500-employee threshold
  • When calculating pay due to employees under the emergency paid leave provision (80 hours or 2-week average), we should include overtime hours worked. For example, an employee who is scheduled to work 55 hours a week may take 55 hours of paid sick leave in the first week, but would only be allowed 25 hours in the second week, and no more than 80 hours total.
  • While the overtime hours are included, the pay rate does not need to include premium overtime pay.
  • Paid emergency sick leave (80 hours) and expanded FMLA (12 weeks) run concurrently and are NOT retroactive. You will not be able to count any leave allowed before April 1 against your obligations to provide paid leave under the FFCRA.
  • The “regular rate of pay” used to calculate leave pay and is the average of an employee’s regular rate over a period of up to six months prior to the date on which the leave is taken. If an employer recently cut pay or place employees on unpaid leave, the employer must look back at the employee’s total compensation for the last six months and divide it by all hours actually worked to determine the regular rate of pay.